Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
Nos. 02-2398
02-2560
LANCE 3X HULLUM,
Petitioner, Appellant,
v.
MICHAEL MALONEY, COMMISSIONER OF THE
DEPARTMENT OF CORRECTIONS,
Respondent, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Lance 3X Hullum on brief pro se.
Thomas F. Reilly, Attorney General, and Annette C. Benedetto,
Assistant Attorney General, on brief for appellee.
June 30, 2004
PER CURIAM. This habeas appeal presents a single issue
involving the Double Jeopardy Clause. To prevail on this claim,
petitioner must establish that the state court's decision "was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States." 28 U.S.C. § 2254(d)(1). As petitioner has not
come close to making such a showing, we affirm the denial of habeas
relief.
Following his brutal assault on a fellow Massachusetts
inmate, petitioner Lance Hullum was subjected to prison
disciplinary proceedings and sanctioned with a 66-month sentence to
the Departmental Disciplinary Unit (DDU) at MCI Cedar Junction.
For that same conduct, he was also indicted in state court for
assault and battery with a dangerous weapon (along with another
charge that was later dropped). Claiming that the administrative
sanction constituted punishment for double jeopardy purposes,
petitioner moved for dismissal of the indictment. He prevailed on
this argument at the trial court level, but the Supreme Judicial
Court (SJC), in a pair of opinions addressing successive appeals
brought by petitioner and other inmates, found no double jeopardy
violation. See Commonwealth v. Forte, 423 Mass. 672 (1996); Clark
v. Commonwealth, 428 Mass. 1011 (1998) (rescript). Petitioner
thereafter pled guilty to the criminal charge.
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After another round of state court challenges, petitioner
sought habeas relief in federal court, advancing four separate
claims. The district court ended up denying relief under United
States v. Broce, 488 U.S. 563 (1989), concluding that petitioner's
voluntary and counseled guilty plea effected a waiver of any
ensuing attempt to collaterally attack his conviction. The court
did, however, certify the double jeopardy issue for appeal.
At the outset, petitioner disputes the finding of waiver.
He claims to fall within an exception to the Broce rule announced
in Menna v. New York, 423 U.S. 61 (1975) (per curiam). Addressing
an analogous double jeopardy claim, the Court there held that
"[w]here the State is precluded by the United States Constitution
from haling a defendant into court on a charge, federal law
requires that a conviction on that charge be set aside even if the
conviction was entered pursuant to a counseled plea of guilty."
Id. at 62 (citing Blackledge v. Perry, 417 U.S. 21, 30 (1974)).
Petitioner's reliance on Menna is arguably justified. See, e.g.,
Jackson v. Coalter, 337 F.3d 74, 78-81 (1st Cir. 2003) (applying
Menna exception under somewhat comparable circumstances). For this
reason, and because petitioner's claim so plainly fails to meet the
rigorous § 2254(d)(1) standards, we sidestep the waiver issue and
turn to the merits.
As mentioned, our task is not to decide whether the SJC's
double jeopardy ruling was correct, but only whether it contravened
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or unreasonably applied Supreme Court precedent. It clearly did
neither of those things. At the time petitioner first raised his
double jeopardy claim, the view was widely accepted that "prison
discipline does not preclude a subsequent criminal prosecution or
punishment for the same acts." Garrity v. Fiedler, 41 F.3d 1150,
1152 (7th Cir. 1994) (listing cases from eight other circuit
courts). In concluding that a different result was nonetheless
warranted, the first superior court judge in petitioner's case
relied on United States v. Halper, 490 U.S. 435 (1989)–-and in
particular its comment that "a civil sanction that cannot fairly be
said solely to serve a remedial purpose, but rather can only be
explained as also serving either retributive or deterrent purposes,
is punishment," id. at 448.
Yet Halper does not assist petitioner. For one thing,
those federal courts that reconsidered the issue in the wake of
Halper uniformly deemed that decision inapplicable in the prison-
discipline context. See, e.g., United States v. Mayes, 158 F.3d
1215, 1220 n.9 (11th Cir. 1998) (collecting cases); cf. United
States v. Stoller, 78 F.3d 710, 717-18 (1st Cir. 1996) (limiting
Halper to compensatory, monetary penalties). More important, the
Supreme Court narrowed the Halper decision in United States v.
Ursery, 518 U.S. 267, 284 n.2, 286 (1996), and then "in large part
disavow[ed]" the entire Halper analysis in Hudson v. United States,
522 U.S. 93, 96, 100-02 (1997).
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The Hudson Court noted that "[i]f a sanction must be
'solely' remedial (i.e., entirely nondeterrent) to avoid
implicating the Double Jeopardy Clause, then no civil penalties
are beyond the scope of the Clause." Id. at 102. Instead,
reverting to "traditional double jeopardy doctrine," id. at 101,
it declared that double jeopardy "protects only against the
imposition of multiple criminal punishments for the same
offense," id. at 99. As it did in Ursery, see 518 U.S. at 288,
the Hudson Court applied a two-part test to determine "[w]hether
a particular punishment is criminal or civil," 522 U.S. at 99.
The first step is to ascertain what the government intended in
this regard. See id. The second is to ask "whether the
statutory scheme was so punitive either in purpose or effect as
to transfor[m] what was clearly intended as a civil remedy into
a criminal penalty." Id. (internal quotation marks and citations
omitted). The Court listed seven "guideposts" to facilitate the
latter inquiry, see id. at 99-100, and added that "only the
clearest proof will suffice to override legislative intent" in
that respect, id. at 100 (internal quotation marks omitted).
Far from deviating from these principles, the SJC's
disposition of the double jeopardy issue was consistent
therewith. It determined that "imposition of prison discipline
is a civil proceeding," Forte, 423 Mass. at 676, and that DDU
confinement had a "remedial purpose" as well as a punitive one,
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id. at 677. On the sparse record in Forte, it also found no
showing "that DDU confinement is so extreme as to any defendant
in relation to his wrongdoing that the double jeopardy clause is
implicated." Id at 678. The superior court on remand reached
the same conclusion after making detailed findings of fact, and
the SJC justifiably endorsed that determination in Clark. See
428 Mass. at 997. Nothing in the SJC's analysis contravened or
unreasonably applied Supreme Court precedent. Cf. Jackson, 337
F.3d at 81-85 (holding that double jeopardy claim failed to
satisfy § 2254(d)(1) standards).
Affirmed.
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